Avoiding Common Bid Protest Mistakes
Mistake 8: Holding ‘Em When You Should be Folding ‘Em
Solution: Learn to Distinguish Between Winning Protest Arguments and Losing Protest Arguments
Make no mistake. Bid protests are difficult to win. The standard is demanding. The sustain rate is lower than protestors would like it to be (though, notably, that does not take into account voluntary corrective action taken by the agency). Even if you escape the protest pitfalls relating to – for example – jurisdiction, standing, or prejudice, you still aren’t out of the words. The GAO and the COFC routinely defer to agency judgement, and will not substitute their own judgement for that of the agency. That means that a protestor’s mere subjective disagreement with the agency’s opinion (whether concerning a contractor’s merit, the way in which the contractor was evaluated, or the rating that the contractor received) is not enough to prevail. To win, a protestor must show that the agency made an objective error, or acted arbitrarily or capriciously, or in a manner inconsistent with law or the stated evaluation framework.
It is sometimes hard to differentiate between subjective disagreement, and more objective types of arguments challenging the agency’s conduct. Often, it may seem like splitting hairs to try and identify protest bases as falling into one or the other category. And admittedly, one can never eliminate all subjectivity; every disagreement necessarily has a little bit of opinion baked in. That said, there are ways of distinguishing between the stronger, more objective type of arguments on one hand and the weaker, more subjective type of arguments on the other. I find that it is easier to see the difference in these types of protest arguments by looking at real examples, as opposed to talking about them in the abstract. So, with that in mind, let’s take a look at some different examples arising out of the same theoretical solicitation.
In our theoretical solicitation, the evaluation factors are (1) Technical Expertise, (2) Past Performance and (3) Price. The solicitation explains that Technical Expertise is more important than Past Performance, and the non-price evaluation factors taken together are far more important than price. In the debriefing, the protestor learns that it was assigned a Factor 1 Technical Expertise rating of “Marginal” (the possible ratings being: Excellent; Good; Acceptable; Marginal, Unsatisfactory). The agency explained that it rated the protestor “Marginal” because of one assigned weakness the agency found in the proposal.
- A protest where the protestor simply argues that the alleged weaknesses should not have been deemed a weakness is not the strongest protest because it rests solely on a contractor’s disagreement with the subjective judgement of the agency. Generally, protests where you do nothing but argue “I am better than you think I am!” are hard to win. (Though admittedly, sometimes that is all you have).
- A stronger protest would be if the protestor could not only challenge the agency’s judgement regarding what is or is not a weakness, but rather show that the agency’s assignment of a “weakness” was an objective error because it was based on unstated evaluation criteria. Here is what that might look like: Let’s say the theoretical solicitation described above was an Army solicitation. The Technical Expertise factor was supposed to evaluate how many projects – similar to the procurement at issue in terms of price, scope and nature – the offerors had performed in the last three years. The agency assigned the protestor a weakness because, while the protestor had indeed in the last three years performed five projects virtually identical to the procurement at issue in scope and nature, and at or above the same dollar magnitude, none of the projects were for the Army specifically, and the agency rated Army-specific experience higher when evaluating proposals. That would arguably be improper here. Because nothing in the solicitation limited offerors to listing projects for the Army only, or advised offerors that past projects for the Army would be considered preferable to similar projects for other agencies, the agency’s preferential treatment of agency-specific experience could very well be considered an unstated evaluation criteria. “I should have been rated higher because the only weakness the agency assigned was based on unstated evaluation criteria, which not listed in the solicitation” is a much stronger protest argument than “I should have been rated higher because what the agency sees as a weakness I just don’t see as a weakness.”
- Another option: “I would have been rated higher if the agency had not misapplied the adjectival rating definitions” could be an equally strong, if not even better, argument. This is how you build an argument like that: Consider if the protestor, in addition to having one weakness, also had three strengths. Further assume that the theoretical solicitation defined the rating of “Good” as something like “having no more than one weakness, and at least three strengths,” the rating of “Acceptable” as “having no more than two weaknesses and at least one strength” and the rating of “Marginal” as “having more than two weaknesses.” In such a case a protestor could argue that, even assuming the weakness assigned was legitimate (but never conceding that it was), one weakness and three strengths should still have resulted in a rating of “Good” and not “Acceptable” let alone “Marginal.” The agency’s failure to follow the stated adjectival rating definitions is an objective error. This type of argument does not require GAO or COFC to disagree with the agency’s subjective opinion as to the weakness itself, but rather just to acknowledge the agency misapplied the definitions in the solicitation.
- Now, what if the offeror also had one weakness and three strengths, and somehow was rated “Good” or “Acceptable,” even though the protestor got a “Marginal” with the exact same number of strengths and weaknesses? That could be used as evidence supporting an argument of unequal or disparate treatment. Another example of unequal or disparate treatment would be if both the protestor and the offeror were rated “Satisfactory Confidence” for the Past Performance factor (the possible ratings being: Substantial Confidence, Satisfactory Confidence, Limited Confidence and No Confidence), even though the protestor had twenty recent and relevant projects and the awardee was, for example, a brand new company with no past performance, or, alternatively, an established company that had recently been terminated for default on three projects after getting negative CPARS for years. In either case, it would be hard for the agency to justify assigning the protestor and the awardee the exact same past performance rating.
Using these types of examples, you can start to see how different types of protest arguments are more objective than, and therefore preferable to, others based on mere subjective disagreement.
Indeed, not all protests are created equal. The keys to success in the protest world are: recognizing that there is a sliding scale in which some protest arguments are more likely to succeed than others; figuring out where on that scale you are, based on the information you currently have and the arguments that your current information can support; and determining what additional information you might be able to gather to support additional, better arguments. Oftentimes this means working with a legal professional to come up with appropriate debriefing questions and exploring what other information you can amass about the industry and the awardee(s). While protesting is hard, you can win, if you know what you are doing and if you engage in the proper analysis concerning the likelihood of success early on.